Bandanza v. Amaturo, No. Cv94 04 84 56 (Jan. 25, 1995)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION RE: MOTION TO STRIKE The plaintiffs herein have moved to strike the answer of the defendant United States of America. The action before the court is one to partition the subject property owned by the plaintiffs and the defendant Donna Amaturo. The United States of America is a defendant because of an Internal Revenue Service Lien.

The defendant United States of America in its answer to the complaint requests that if a judgment is to be entered that it be for a foreclosure by sale:

". . . judgment be for a foreclosure by sale in accordance with the requirement of 28 U.S.C. § 2410; and that if the premises involved herein are sold, they be sold free and clear of all liens and encumbrances save the right of redemption vested in the United States of America by virtue of 28 U.S.C. § 2410; . . . . .

Section 28 U.S.C. § 2410 c reads in part as follows:

". . . . However, an action to foreclose a mortgage or other lien naming the United States as a party under this section, must seek judicial sale. . . . ."

The court does not have before it any action to foreclose a mortgage or other lien. The action pending is one seeking a partition of the subject property according to the respective rights of the co-owners and a sale of the property with the proceeds to be equitably divided among the owners. The Court may, if the property can not be equitably divided, appoint a committee to carry out such a sale.

28 U.S.C. § 2410(a)(3) does permit naming the United States of America in a partition action wherein the United States has a her. on the property. There is no attempt being made to foreclose that lien or any other lien. The action is for a "partition" of the real property, the subject matter of this action. CT Page 380

The answer, as it now stands, is hereby stricken.

THE COURT

CURRAN, J.